133 U.S.

138
10 S.Ct. 290
33 L.Ed. 531

KEYSER
v.
HITZ.
January 6, 1890.

Leigh Robinson, for plaintiff in error.

Enoch Tollen, for defendant in error.
Mr. Justice HARLAN, after stating the facts in the foregoing language,
delivered the opinion of the court.

1
This
action is based upon an assessment made by the comptroller of the currency on
the stockholders of the German-american National Bank of the City of Washington,
which suspended business on the 30th day of October, 1878, and of which the
plaintiff in error was app inted receiver. The assessment was upon the stockholders,
equally and ratably, to the amount of 100 per centum of the par value of their shares.
It was averred in the declaration filed by the receiver that the defendant. Jane C.
Hitz, held or owned at the time of the bank's suspension 200 shares of its stock, of
the par value per share of $100; and that by reason thereof the plaintiff was entitled
to recover from her the sum of $20,000, with interest on each half of that sum from
the dates they should have been respectively paid under the notice given by the
receiver.
2

The defendant pleadedFirst, that she was never indebted as alleged; second,
that she never at any time held or owned shares of stock in this bank, and, if it
appeared upon its books or otherwise that any of the stock stood in her name,
the entries to that effect were fraudulent, and were made for the purpose of
cheating her; third, that since August 15, 1856, she has been the wife of John
Hitz. She filed an additional plea, averring that there was not, nor had ever
been, any such national banking association as the German-American National
Bank, of which the plaintiff was receiver; meaning, by this plea, that no such
association was ever organized in conformity with the statutes of the United
States.

There was evidence before the jury tending to establish the following facts:

In the year 1872 certain persons, among whom was John Hitz, the husband of
the defendant, availed themselves of the provisions of the act of congress of
May 5, 1870, relating to the creation of corporations in the District of Columbia
by general lews, as amended by the act of June 17, 1870, and formed a
corporation by the name of the 'German-American Savings Bank of the City of
Washington.' 16 St. pp. 98, 102, c. 80; Id. p. 153, c. 131.

There appears, under date of January 21, 1876, upon the books of that bank,
labeled 'Stock Transfers and Ledger, German-American Savings Bank,' entries
showing the assignment and transfer to Jane C. Hitz of shares of stock, as
follows: 173 shares by John Hitz, 10 shares by William F. Mattingly, (the latter
acting by Samuel L. Mattingly, attorney,) 10 shares by R. B. Donaldson, and 7
shares by C. E. Prentiss; in all, 200 shares. At the time these transfers purport to
have been made, John Hitz was president of the bank, Donaldson vicepresident,
and Prentiss cashier; and they, with Mattingly and others, were its trustees. The
stubs in the book of transfers state that new certificates for all the above stock
were issued to Mrs. Hitz; but it was not distinctly shown that they were
delivered to her, or were ever in her possession. It was, however, proven that
the fourth dividend upon these shares, amounting to $800, was paid by the
check of Prentiss, the cashier of the savings bank, dated May 1, 1876, which
was in these words: 'Pay to Jane C. Hitz or order $800, fourth dividend, payable
this day on stock standing in her name on the books of this bank, and charge to
dividend account No. 3,300.' That check was indorsed: 'Pay to the order of John
Hitz. JANE C. HITZ.' Then follows this indorsement: 'JOHN HITZ, Consul
General;' showing, as stated by Prentiss, that the proceeds of the check were
deposited by John Hitz to his account in the bank as consul general. Similar
checks were made for the fifth and sixth dividends on the same stock. They
were payable, respectively, November 1, 1876, and November 1, 1877, and
were indorsed in the same way as was the first check. As in the case of the first
check, their proceeds were placed to the credit of John Hitz as consul general.

Among the original papers on file in the office of the comptroller of the
currency were the following:

(1) A document dated May 7, 1877, purporting to be signed by the stockholders

of the German-American Savings Bank of Washington, then having a capital of
$127,100, and to authorize the trustees thereofJohn Hitz and others named
to convert that bank into a national banking association, by the n me of the
'German-American National Bank of Washington,' and make the articles of
association and the organization certificate required by the statutes of the

United States. Under the headings in that document of 'Names of Stockholders,'

and 'No. of Shares Owned by Each,' appear, among other names, those of John
Hitz, 130 shares; R. B. Donaldson, 90 shares; W. F. Mattingly, 190 shares; C.
E. Prentiss, 61 shares; John Hitz, trustee, 25 shares; John Hitz and C. E.
Prentiss, trustees, 81 shares; and Jane C. Hitz, 200 shares.
8

(2) The organization certificate, signed by the trustees, and verified by their
oath, stating that they have been authorized by the stockholders of the GermanAmerican Savings Bank to change it into a national banking association, the
stock of which be divided as it was then divided in the savings bank. That
certificate contains a statement of the names, residence, and number of shares
held by each stockholder of the savings bank, and in the list appears the name
of Jane C. Hitz, as holding 200 shares. It bears date May 7, 1877, and was filed
with the comptroller of the currency, May 13, 1877.

(3) The articles of association of the German-American National Bank of

Washington, which is accompanied by the certificate of J. S. Langworthy, as
acting comptroller of the currency, under date of May 14, 1877, stating that that
bank had complied with all the provisions of the Revised Statutes relating to
national banking associations, and was authorized to commence business as
provided in section 5169 of the Revised Statutes. The national bank had the
same officers and trustees as the savings bank.

10

No direct proof was made by the plaintiff that the signature purporting to be
that of the defendant, on the above checks for dividends, was her genuine
signature.

11

In reference to the stock of the German-American Savings Bank which,

according to the entries in its books, was transferred by Mr. Mattingly, the
latter, as a witness for the defendant, testified that he owned stock in that bank,
but that he had never transferred any of it; that he never owned and did not
himself transfer 10 shares of stock to Mrs. Hitz; and that he did not purchase
those shares, and did not know how they happened to stand in his name,
although he supposed his brother, who executed the transfer in the witness'
name, understood how it all occurred.

12

Mr. Donaldson testified for the defendant that, while he signed a transfer of 10
shares of stock to Mrs. Hitz, he had no recollection whatever of the transaction;
that he never owned the stock so transferred; and was never paid for it by any
one.

13

Mrs. Hitz testified in her own behalf. The substance of her testimony was that
she never bought, owned, or voted any stock in the German-American Savings
Bank or in the German-American National Bank; never knew until after the
failure of the national bank that her name appeared among the stockholders on
the books of either bank; never received any dividend declared or paid by
either; and never received or held any certificates of stock in either bank. Being
asked as to whether the signature of Jane C. Hitz to the paper purporting to be
signed by the stockholders of the German-American Savings Bank, and
authorizing its conversion into a national banking association, was her
signature, she answered, in substance, that she knew nothing of that paper; did
not remember to have signed it, although the signature resembled hers; was not
aware of the conversion of the savings bank into a national bank until after the
failure of the latter; and, as she never owned any of this stock, she would not
have signed any paper for such change, if she had been asked to do so. Being
shown the checks for dividends on the stock standing in her name, she stated
that she had no recollection of seeing them until after the failure of the GermanAmerican National Bank. Again: 'Question. What do you say as to the
signature,did you write it? Answer. I cannot say. Q. Did you ever get any
money on a count of those checks? A. I never did. Q. Those checks appear to
have been paid. Do you remember whether you ever had them in your
possession or not? A. No sir; I never had them in my possession. Q. What do
you say? A. I am certain I never had them in my possession. Q. Can you
account to the jury for the similarity of that signature to your own? A. I cannot.
Q. Do you say you never wrote your name on the back of those checks? A. No,
sir; I cannot say that. I have no recollection of having done so. I never did so
knowing the nature of the checks; never did so at all, so far as I can recollect.'

14

Upon cross-examination: 'Q. You are unable to deny that that is your signature?
ture? A. I cannot positively deny that it is. Q. Can you deny at all that that is
yoursignature? A. I can deny having any recollection of having signed them. Q.
Can you deny that it is your signature? A. I cannot deny it. Q. Now, I will ask
you whether, when you were in Europe, the salary of your husband as consul
general was not paid to you? A. It was during part of the time that I was there.
Q. To what did that salary amount? A. I think, $3,000.'

15

Upon re-examination the defendant was permitted, against the objection of the
plaintiff, to state that she thought it would be impossible for her to have owned
$20,000 of stock in the German Savings Bank and not have remembered it.
Being asked whether, if she had seen the checks, she could have forgotten
them, she said: 'Had I seen them, knowing what they were, I should not have
forgotten them,could not have forgotten them.' The foregoing is substantially
the case made before the jury.

16

Before entering upon the examination of the questions raised by the plaintiff's
assignments of error, it is necessary to consider certain propositions advanced
by the defendant, which, if sound, might be sufficient to dispose of the case.

17

It is contended that the conversion of the German-American Savings Bank into

a national banking association was unauthorized by any statute of the United
States, and, consequently, that the appointment by the comptroller of the
currency of the plaintiff as receiver, and the assessment made by that officer
upon the stockholders of the bank,which assessment is the foundation of the
present suit,were absolute nullities.

18

The privilege of becoming a national banking association is given by section

5154 of the Revised Statutes to 'any bank incorporated by special law, or any
banking institution organized under a general law of any state.' These words, it
is argued, do not embrace savings banks organized in the District of Columbia,
and only refer to banks or banking institutions created under the authority of
some state, either by a special or general law. But all difficulty upon the subject
is removed by the act of congress entitled 'An act authorizing the appointment
of receivers of national banks, and for other purposes,' approved June 30, 1876,
the sixth section of which is as follows:

19

'That all savings banks or savings and trust companies organized under
authority of any act of congress shall be, and are hereby, required to make, to
the comptroller of the currency, and publish, all the reports which national
banking associations are required to make and publish under the provisions of
sections fifty-two hundred and eleven, fifty-two hundred and twelve, and fiftytwo hundred and thirteen of the Revised Statutes, and shall be subject to the
same penalties for failure to make or publish such reports as are therein
provided; which penalties may be collected by suit before any court of the
United States in the district in which said savings banks or savings and trust
companies may be located. And all savings or other banks now organized, or
which shall hereafter be organized, in the District of Columbia, under any act of
congress which shall have capital stock paid up in whole or in part, shall be
subject to all the provisions of the Revised Statutes, and of all acts of congress
applicable to national banking associations, so far as the same may be
applicable to such savings or other banks: provided, that such savings banks
now established shall not be required to have a paid-in capital exceeding one
hundred thousand dollars.' 19 St. 64; Supp. Rev. St. U. S. 216, 218.

20

Under that act of the German-American Savings Bank was required to make to
the comptroller of the currency the reports which by sections 5211, 5212, and
5213 of the Revised Statutes were required from national banking associations.

It also became subject to all the provisions of the Revised Statutes and of the
acts of congress relating to national banking associations, so far as those
provisions were applicable to a savings bank organized in this District. It is too
clear for dispute that after the passage of the act of 1876 savings banks
organized in this District under an act of congress, and having a capital stock
paid up in whole or in part, were entitled to become national banking
associations in the mode, and subject to the conditions, prescribed by section
5154. Surely that section cannot be deemed inapplicable to savings banks of
that class.
21

Another contention of the defendant is that the German-American National

Bank could not acquire the powers and privileges of a national banking
association before receiving from the comptroller of the currency a certificate
that the provisions of the statute relating to such associations had been
complied with, and that it was authorized to commence the business of banking;
that the certificate given under date of May 14, 1877, by J. S. Langworthy, as
'acting' comptroller of the currency, did not meet the requirements of the
statute, because, it is argued, there was no such officer known to the law. Rev.
St. 5154. This point was not specifically made in the court below. But there is
nothing of substance in it, even if it could properly be raised in this collateral
proceeding. There is an officer designated a 'deputy comptroller of the
currency,' who may exercise the powers and discharge the duties attached to the
office of comptroller during a vacancy in that office, or during the absence or
inability of the comptroller. Id. 178, 327. The certificate alluded to was from
the office of the comptroller, and was under the seal of that office. Besides, this
court takes judicial notice of the fact that Mr. Langworthy was, at the date of
his certificate, deputy comptroller of the currency; and it will be assumed that
at the date of his certificate he was authorized to exercise the powers and
discharge the duties of the comptroller, and was therefore, at the time, acting
comptroller.

22

It is further insisted that Langworthy's certificate is no part of the transcript.

And the defendant has made a motion in this court to strike it from the record.
It is clear, from the affidavits submitted, that the certificate was used at the trial
in special term, and that it was accidentally omitted from the bill of exceptions
taken by the plaintiff. This omission being discovered before the case was
heard in general term, application was made to the trial justice, after the special
term had adjourned without day, to amend the bill of exceptions so as to make
this certificate a part of it. The application was granted, whether upon notice to
the defendant or her counsel is not clearly shown,and the case was heard in
the general term without any suggestion, so far as the record shows, that the
certificate had been improperly made a part of the record after the bill of

exceptions had been completed and signed. An objection of that character will
not be considered where it was not presented to the court whose judgment is
here for review. The record must be taken as it was presented to the general
term.
23

We ow proceed to consider the principal questions arising upon the requests for
instructions and upon the charge of the court to the jury.

24

At the instance of the defendant, the jury were instructed substantially as

follows:

25

That if the stock in controversy was transferred upon the books of the GermanAmerican Savings Bank to and in the name of the defendant, without her
knowledge and consent, she was entitled to a verdict, unless she subsequently
ratified and confirmed such transfer.

26

That if the defendant was procured to sign the application to the comptroller of
the currency for the organization of the German-American National Bank by
fraudulent means and representations, such application must not be taken as
confirming the transfer of the stock to her on the books of the savings bank.

27

That if the defendant was induced to indorse the three checks for dividends by
means of fraud or misrepresentation, or by concealing from her the facts
concerning them, such checks cannot be regarded as a confirmation of the
transfer of the stock to her name, nor as evidence against her.

28

That if the stock was transferred to the defendant for fraudulent purposes, by or
at the instigation of her husband, and without her knowledge or consent, such
transfer was void, and she was entitled to a verdict; and

29

That if, at or before the time of the transfer of the stock to the defendant on the
books of the company, she had not purchased the stock, or authorized it to be
purchased, either directly or indirectly, and knew nothing about it, she was not
liable, as a shareholder, to the assessment in question.

30

These instructions were, in effect, repeated in the elaborate charge to the jury.

31

The testimony of the defendant tended to show that the stock was originally
transferred to her on the books of the German-American Savings Bank, without
her knowledge or consent; and the issue upon that point was fairly submitted to

the jury by the first instruction given at her instance. But some of the
instructions given upon her motion, as well as the charge to the jury,
erroneously assumed that there was evidence tending to show that she was
procured, by fraudulent means and representations, to sign the application for
the conversion of the savings bank into a national bank; that, by like means, or
by concealment of the facts, she was induced to sign the checks for dividends;
and that the transfer of the stock to her name was for fraudulent purposes, by or
at the instigation of her husband. There was, however, no evidence as to the
circumstances under which her name was signed to the application addressed to
the comptroller, or under which the checks were indorsed in her name;
absolutely none upon which to base the theory of fraud or false representations.
It is true, as already suggested, there was evidence tending to show that the
transfers of stock were made originally without defendant's knowledge; and the
jury might reasonably have concluded, under all the evidence, that the transfers
were made, and caused to be made, by her husband. But these facts neither
proved, nor tended to prove, fraud upon the part of the husband. There was no
proof that he was insolvent, and therefore it could not be presumed that the
transfers were made with any intent to defraud his creditors. Besides, the intent
with which the husband caused the transfers to be made to his wife was wholly
immaterial. Even if the object was to conceal his property from creditors, the
vital question remained whether the defendant became the owner of the stock
within the meaning of the statute regulating the individual liability of the
shareholders of national banking associations. In other words, the husband may
have intended to commit a fraud upon his creditors, and the transfers of stock
may have been made to the wife without first obtaining her consent; and yet she
may have been, at the time of the bank's failure, liable to be assessed as a
shareholder. There was no connection between her liability to be assessed,
and the alleged fraudulent intent with which the husband caused the transfers of
stock to be made.
32

Whether she signed the application for the conversion of the savings bank into
a national bank in the capacity of shareholder, to the extent of two hundred
shares, was wholly apart from any question of her knowledge, at the time of the
transfers, of the motive which induced her husband in making or causing them
to be made. If she became a ware of the transfers after they were made, and
thereafter received the dividends, she became a shareholder for all purposes of
individual liability in respect to the contracts, debts, and engagements of the
bank, as fully as if the transfers had been made originally with her knowledge
and consent. Whether she received the dividends or not depended upon the
inquiry as to whether the checks for them were indorsed by her. If she indorsed
them, or either of them, she is estopped to say that she did not know their
contents, and was not the owner of the shares of stock upon which the

dividends were declared; for each check discloses upon its face that it was
payable to her order, and was for dividends on stock standing in her name on
the books of the bank. This result is not at all affected by the fact that the
proceeds of the checks went to the credit of John Hitz's account as consul
general. If the defendant indorsed the checks in blank or to the order of her
husband, and delivered them to him, the mode in which he disposed of the
proceeds is of no consequence in the present suit.
33

We must not be understood as saying that the mere transfer of the stocks on the
books of the bank, to the name of the defendant, imposed upon her the
individual liability attached by law to the position of shareholder in a national
banking association. If the transfers were, in fact, without her knowledge and
consent, and she was not informed of what was so done,nothing more
appearing, she would not be held to have assumed or incurred liability for the
debts, contracts, and engagements of the bank. But if, after the transfers, she
joined in the application to convert the savings bank into a national bank, or in
any other mode approved, ratified, or acquiesced in such transfers, or accepted
any of the benefits arising from the ownership of the stock thus put in her name
on the books of the bank, she was liable to be treated as a shareholder, with
such responsibility as the law imposes upon the shareholders of national banks.

34

The arguments of counsel were partly directed to the question whether new
certificates of stock were issued by the savings bank, and delivered to the
defendant, after the transfers were made on the books of that bank. It is
sufficient, on this point, to say that the record made of the transfers upon the
books of the bank was sufficient, as between her and the bank, to work a change
of ownership, and new certificates were not necessary to her becoming the
owner of the stock so transferred. Nor can she escape liability by reason of the
fact, if such be the fact, that no certificates were issued to her by the GermanAmerican National Bank. The statute expressly declares that the shares of the
old bank may continue to be for the same amount each as they were before the
conversion.

35

One other question raised by the defendant requires consideration. She

contends that her coverture, at the time of the transfers, as well as when the
bank failed, protected her against assessment upon the stock put in her name
upon the books of the bank. The plaintiff's requests for instructions upon this
point having all been granted by the court below, it is suggested that no
question can arise upon the assignments of error in reference to the individual
liability of married women for the debts, contracts, and assessments of national
banking associations of which they are shareholders. But if the defendant's
position is correct, the judgment might be affirmed upon the ground that she

was not, under any circumstances, liable to an assessment by the com troller.
For this reason, and because this question will necessarily arise upon another
trial, it is proper to give it some attention.
36

We do not understand the defendant to say that she was incapacitated by the
laws in force in the District of Columbia from becoming the owner of bankstock. It was well said by Mr. Justice Cox, when the present case was first
before the general term, (Keyser v. Hitz, 2 Mackey, 473, 493,) that a married
woman 'has the legal capacity to receive gifts, may be the obligee of a bond, or
receive a transfer of stock in moneyed corporations, and this though the
consideration may have proceeded wholly from the husband, and in such case
she may hold against the legatees and heirs, but not against the creditors, of the
husband. Fisk v. Cushman, 6 Cush. 20.' We speak of gifts, because the
reasonable inference from all the evidence is that the defendant's husband made
and caused to be made the transfers in question as a gift, though not, so far as
the record shows, to her sole and separate use.

37

Assuming, then, that she was not incapacitated from becoming the owner of
stock in a bank, and that she was a shareholder in the savings bank, she became,
upon the conversion of that bank into a national bank, a shareholder in the
latter. Rev. St. 5154. In that event she became, by force of the statute,
individually responsible to the amount of her stock, at the par value ththereof,
for the contracts, debts, and engagements of the national bank, equally and
ratably with other shareholders. Section 5151 which imposes such individual
responsibility upon the shareholders of national bank makes no exception in
favor of married women. The only persons holding shares of national bank
stock whom the statute exempts from this personal responsibility are executors,
administrators, guardians, or trustees. Section 5152. It is not for the courts by
mere construction to recognize an exemption which congress has not given.
The hardship that may result where the ownership of national bank stock by a
married woman is subject to the commonlaw rights of the husband, in respect to
its alienation, cannot control the interpretation of the statute. Such
considerations are more properly for the legislative department. Upon this point
the Case of the Reciprocity Bank, 22 N. Y. 9, 15, which involved the liability
of a married woman as a shareholder in a state bank, is instructive. The
constitution and statutes of New York made the shareholders in corporations
and joint-stock associations for banking purposes, issuing bank-notes,
'individually responsible,' etc. The court of appeals of that state, speaking by
Chief Judge COMSTOCK, said: 'It is also said that femes covert are not liable
to suit or judgment at the common law; and, in general, this is true. It is also
true that the apportionment of liability amongst stockholders in banks, when
duly confirmed, becomes a judgment against each stockholder, to be enforced

by execution as in other cases. But it was competent for the legislature to depart
from the rules and analogies of the common law, and to make married women
and their estates liable in this proceeding, as other shareholders in banks are
made liable. This, we think, has been done, and it seems to us proper to add that
we see no reason why it ought not to be done, in order to effectuate the policy
in which the constitutional provision and the statute are founded. It might go far
to defeat that policy, if married women could take and hold stock without
liability to the creditors.' See, also, Sayles v. Bates, 15 R. I. 342, 5 Atl. Rep.
497.
38

This question rose in Anderson v. Line, in the circuit court of the United States
for the eastern district of Pennsylvania, where it was held by Chief Justice
McKENNAN that a married woman was not exempted by reason of her
coverture from the liability imposed by congress upon shareholders in nation
banks. 14 Fed. Rep. 405. To the same effect is the decision of Judge
WHEELER in Witters v. Sowles, 32 Fed. Rep. 7 7.

39

We are of opinion that the coverture of the defendant did not prevent the
plaintiff from recovering a judgment against her for the amount of the
assessment in question, if she was, within the meaning of the statute, a
shareholder in the bank at the time of its suspension. But the question as to
what property may be reached in the enforcement of such judgment is not
before us, and we express no opinion upon it.

40

For the above errors committed by the court below in its instructions to the jury
the judgment is reversed, with directions to grant a new trial, and for further
proceedings consistent with this opinion.

41

MILLER, J., dissented.